Will the Affordable Care Act Argument Be Worth the Hype?

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After years of speculation and analysis, the case of the decade is almost here! But for those hoping for some fireworks on March 26, you're probably going to be disappointed.

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What's left to say about the constitutionality of the Affordable Care Act that hasn't already been said by someone, somewhere, in the years-long run-up to the Supreme Court's landmark argument beginning March 26th? Not much. In fact, the ceaseless chatter about the  three joined health care cases now has the tired, forced feel of the fourth hour of a Super Bowl pregame show. Enough already with the predictions. Enough with the pregame analysis. Enough with the sidebars. Enough with the practices. Let the battle begin!

Six hours of oral argument over three days! Everyone is excited about it now but just you wait. Sixty minutes into the first 90-minute argument, over the Anti-Injunction Act (otherwise known as the Ambien Act of 1793), most journalists and other courtroom observers will be staring past the somber justices to the curtains behind them, trying to count how many folds they can see between the pillars. Things may be so boring and bad in the gallery, in fact, that Justice Clarence Thomas himself may have to pipe up from the bench to wake everyone up. 

The truth is that the six droning hours of legal debate, spread out like cold molasses over an otherwise enchanting early spring week in Washington, will generate maybe six minutes of trenchant soundbites from the justices. And at the end of it all we will know only marginally more than we know now about what The Court will do about the law. We will, instead, almost certainly, be kept guessing for three more months, to the end of June, when the justices toss us their contentious ruling as they head out of town for their summer vacation.

In November, I laid down my chalk and I'm not inclined to change my predictions now. I still believe it is more likely than not that the health care bill will be deemed constitutional on its merits by a majority of the justices, including Justice Anthony Kennedy. I still believe it is possible that Chief Justice John Roberts will side with the majority in that event. And, despite the recent chatter, I'm not buying the idea that Justice Antonin Scalia is secretly yearning to endorse this law as a valid exercise of Congressional power.

What's been fascinating about the talk leading up to the argument -- what is always fascinating when the world of politics narrowly focuses upon the world of the law -- is how broadly political concepts are ascribed to the art and science of judging. Here, at the intersection of law and politics, a venue which describes this clash of constitutional precedent and health care policy, we see how deeply the politicians reckon that the judges will act like politicians -- even as the politicians have spent the past two years trying to act like judges. 

Folks, Chief Justice Roberts isn't going to wait to see how Justice Anthony Kennedy votes before making up his own mind. If the chief justice is inclined to vote down the act he's not going to suddenly switch sides (so he can write the opinion) if he sees that Justice Kennedy and The Court's four liberals are going to endorse the measure. And, even if he did, so what? Unless he votes to the left of Justice Kennedy here, which won't happen, the chief justice's vote would be the sixth, not the fifth. It'll still be Justice Kennedy's world.

Another form of political schtick that seems to have translated to care act coverage is the concept of "boldly" taking the argument onto the "offensive" by "making a play" for enemy territory. In politics, for example, we saw it in the 2008 presidential election when the Obama campaign went after traditional Republican states. In the fight over the Affordable Care Act, the concept has been captured by a perceived push by the Justice Department to "make a play" for Justice Antonin Scalia, who is about as Red State as you can get.

What I see from federal lawyers as tweaking Justice Scalia to force him to confront his own commerce clause precedent others see as a tactic by the administration to shame him into signing onto the act. Folks, it ain't gonna happen, even though the justice's former law clerk, Jeffrey Sutton, as a member of the 6th U.S. Circuit Court of Appeals, ruled last June in favor of the constitutionality of the health care law. If Justice Scalia wants to strike down the law he should have to explain himself. But that doesn't mean he can't or he won't.

Judge Sutton was bound by the constitutional precedent he saw -- the same precedent, I believe, which ultimately supports the validity of the new law. Justice Scalia, on the other hand, no matter what he says to the contrary, is bound only by his own conscience. That's the difference between being a Supreme Court justice and being an intermediate appellate court judge. Of course, for the administration, Justice Scalia's vote would be the cherry on the sundae -- the seventh vote for the health care bill. I just don't see that happening. Do you?

When I think about the buildup to the arguments, and about the talk of how statute could be struck down, I think of Sandra Day O'Connor and the many ways in which The Court has tilted sharply to the right since she was replaced by Justice Samuel Alito. Can you imagine the Affordable Care Act being voided if Justice O'Connor were still the swing vote? Me neither. The former state legislator, the Reagan appointee, would have seen the good in it. Today, none of the nine justices has ever held elected office. Only one was (even) ever a trial court judge. 

Indeed, the mere fact that reasonable people are even considering the possibility that The Court will strike down the act is a testament to the continuing legacy of George W. Bush. He may be long gone this campaign cycle. But thanks to judicial nominees like Justice Alito and Chief Justice Roberts he'll never be forgotten. The Roberts-Rehnquist trade-off in the fall of 2005 wouldn't have made a difference in this case. But the Alito-O'Connor trade-off in 2006 is the only reason opponents of the health care bill have even a fighting chance before the high court.

I'll check in again late next week with a preview and modest "coverage guide" in case you want to follow the "action" in Washington at the end of March. Me? I'll be there to cover it, and to try to decipher its many meanings, but only because I have to. On the whole, with spring in the air, I'd rather wait for the ruling itself in late June and then judge the justices on the merits of their decision rather than evaluate them now based upon the style of the questions they ask and the tone and tenor of the answers they receive. 

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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